#DFG: Canceling the Noise

Is there any level of suspension that you would advise Tom to accept?


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Eddie Jurak

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DennyDoyle'sBoil said:
 
 

 
 
 
Since this thread may end up directing people over there, I should clarify a bit since there's a bit of history over there in how we talk about things that might not be apparent to those not reading each page as it develops over there.  I was taking the opening brief in isolation and giving my initial thoughts about it.  I added the caveat that's not really how judges read them, and it's a bit artificial because you don't have the full set yet. One point that I was trying to make is that my read on the NFL's brief is that they are trying to set themselves up to win this thing in the reply brief.  They've presented Kessler's side with some very difficult decisions, and I think I can see little mini-traps they are trying to set -- or maybe a better way to put it is that they've left themselves some latitude to attack depending which way Kessler chooses to go on a few things.  The second brief in an appeal is difficult to do well.  You need to be responsive, but you also need to make your best affirmative case.  Do you hook your wagon to what the judge did below, or do you recognize some weaknesses in it and distance yourself from him by being more directly responsive to your opponent?  Stuff like that.  I'm a little worried that Kessler's style is not perfectly suited to appeals, and going up against Clement in oral argument might be a little bit of a mismatch.  But I'll say this -- I don't think Kessler has had a significant mis-step yet in this case.  There were a few points where I really questioned his choices -- much of this is laid out in the legal thread -- but in the end he really has already shown the capacity to do what I think is the hardest thing to do on appeal:  figure out where you absolutely must stick your sword in the ground and defend, and figuring out what you can let go.    
 
Whenever I need to respond to a brief, unless I'm on a compressed schedule I try to let it sit for a week.  I find briefs usually get worse with age.  That is, when I first get them, I see the good in them and mentally put the best spin on them for my opponent.  Then the weaknesses sort of tend to emerge over the next few days as it percolates.  So, anyway, I guess the point is that my thoughts over in the legal thread are very much first impressions.  Like, for example, just since I've posted over there, I've soured just a little more on how much liberty the NFL has taken with the record.  My initial reaction was that they walked a tightrope pretty well, and never really crossed a line.  And I still don't think they've really done anything egregious and they've left themselves plenty of cover in the record, with nothing they can't walk back if they need to in the reply.  And they have stolen some of the narrative, which is often hard to do when you were the loser in the lower court.  But if there's such a thing as a spectrum with clever on one side and risky on the other, I'm starting to think they have tipped a little closer to the latter than I originally gave them credit for.

 
So what do you see as Kessler's options?  
 

Padaiyappa

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Hoya81 said:
I've always felt that the ESPN comment was more about the fact that JJ was dealing equipment and TB swag/autographs under the table.
My cousin is a radiologist in Chicago and the year Jay Cutler had a knee injury and stopped playing, he saw his X-Rays and didn't see anything that could hinder him playing. My first reaction was that I am going to ESPN with this :)
 

DennyDoyle'sBoil

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Eddie Jurak said:
So what do you see as Kessler's options?  
 
I'll probably have more in the legal thread as time goes on, but at the moment my instinct would be to have a short section making clear that, although I'm not arguing the facts, they have taken extensive liberties with the record, and then giving two of the most egregious examples.  After that, I think I would probably stick fairly close to Berman, and bet that they will respect his judgment and, so I would try to suggest that the attack on his understanding of labor law is unwarranted.  On the law, there's a fair amount to say, but a couple of points I'd try to make -- (1) That review of labor awards, while a high standard, is not as cramped as the NFL pretends, and Judge Berman well understood the standards.  (2) That the arbitral precedent stuff, and the cite to Wackenhut in particular, is a red herring -- they are trying to confuse the issue.  Core Supreme Court law is the award must draw its essence from the CBA, and the Supreme Court has repeatedly said that industrial customs (law of the shop) is relevant, and that's all the union argued below and all that Berman (correctly) found governed here.  Last, I would really try to drive home -- even if the law doesn't support it -- the anomalous results that can occur if you apply these standards the way the NFL says they must be applied in a case where a party sits as its own arbitrator.  I think the way Kessler did this below was with the evident partiality argument -- which, even if he didn't win, atmospherically infected the NFL's entire case.  Not sure exactly how he does that here, but that's part of the art of brief writing that really comes out in the drafting and repeated editing.    I also think the NFL may be subject to attack on the grounds that it's changing the arguments from what it argued below -- or, at least to some extent, did not preserve the arguments it now makes.  The place where this seems at least potentially possible is that the NFL, without saying it, is sort of implying that LMRA arbitration standards of review are higher and different from FAA review standards.  Kessler cited authority below that they are the same, and the NFL did not contradict it, and so there may be a waiver here.  At least, that's my recollection.  I haven't analyzed it, but it's something I'd be looking at.
 
On the actual errors in the arbitration, especially notice, as I said I would make it pretty meat and potatoes and not stray far from the script or from Berman.
 
As I said, I like to let briefs sit, and it's only been one day, and haven't read the cases or been involved in the case.  But those are general preliminary thoughts.  
 

Eddie Jurak

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Thanks, DDB. What about the issue of remand back to Berman for the issues he did not rule on. Should Brady's appeal make the case against this?
 

DennyDoyle'sBoil

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Eddie Jurak said:
Thanks, DDB. What about the issue of remand back to Berman for the issues he did not rule on. Should Brady's appeal make the case against this?
 
Clement was clever here.  He basically has put Kessler to a choice.  Clement argued those issues and also argued that the Second Circuit should not only reach them but reject them, and he made an argument why it's appropriate for the Second Circuit to consider them without remanding them.
 
So, if you're Kessler you kind of have to do one of two things.  You can say, no that's not right, these are matters that should be considered first by the trial court and so if the court disagrees on the other grounds, it should remand back to Berman.  Or you can argue the points and say they are affirmative bases for the court to affirm.  The problem with the first approach is that it sort of suggests that you believe you have an advocate in Berman, and you're kind of implying that you don't think the Second Circuit is up to the task. And Clement is kind of right -- it's hard to make an argument that Berman would be in a better position than the Second Circuit is to decide these matters.  There's no witness credibility here.  There is no hearing to be held.  It's all a paper record.  At the same time, the idea that there is an orderly way to decide appeals -- first the trial court decides and then the appeals court reviews -- is deeply ingrained and I think it's possible that the Court will decide it shouldn't go out of its way to address issues that should be before the district court.
 
Clement took a risk here, but I think it's a wise one.  The risk he took is that he raised these alternative bases for affirmance that Kessler might not have raised, and so he put on the table more grounds on which his client can lose.  But by doing so, he's all but forced Kessler's hand.  If you're Kessler now, you can't not respond to these arguments.  Well, I mean you could, but that would take brass balls.  You'd essentially be saying, "this Court shouldn't address these, and so I'm not going to talk about them."  One problem with this approach is that it adds on 18 months in a case where the parties have asked for expedition.  I think he'll probably take a middle in-the-alternative approach -- he'll argue that they should be remanded and considered by Berman in the first instance, but in the event the Court wishes to reach them, here's why the union should win.
 
In the end, I think Clement played this correctly.  If the Court buys what the NFL is selling -- that is if it agrees that Berman committed errors and didn't apply the correct legal standars -- then I think the Court probably will not go on to say, "but we find that the union nevertheless wins on evident partiality."  It's possible, but very unlikely.  I think if the union loses here, because the Court has reservations about Berman's approach, it probably will reach these additional issues and take them away from Berman and resolve the case in full.  If the NFL's brief had not argued them, I would think differently, but at this point the NFL has gone all in, and it's hoping for a spectacular win at the risk of going down completely in flames.  I think they have forced the Court's and Kessler's hand on this, but he's getting paid the big bucks so let's see how he handles it.
 

mwonow

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Sorry to interject here (not being a lawyer), but DDB's last post leaves me curious: Can Kessler argue that since some of the initial case wasn't included in the decision, any reversal should be remanded so that all four primary points can be addressed together? Or would the appeals court be inclined to rule on matters that weren't addressed in Berman's decision, as well as those that are being appealed?
 

dcmissle

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Except they are not really alternative bases for affirmance, as some of them do not really support THIS judgment.

An alternative ground raised but not decided below can be urged in support of the judgment. That is well settled law. But that's an arrow in the appelees's quiver, not the appellants.'

The judgment entered by Berman makes this case go away forever. A couple of the unresolved points raised below do not necessarily lead to the same result -- some of them, such as the partiality point, could lead to further proceedings.

Clement wants the decks cleared because the NFL plainly wants this to end. Perhaps almost as much as they want to win. And so Clement is saying reject them, and he has a more than decent argument that the appellate court is positioned as well as Berman to do so.

If Berman resists, he is signaling to the panel that he fears them, or at least favors Berman over them. Which is not a good place to be unless you have a good point about Berman being better positioned to resolve these issues.
 

mwonow

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Thanks, I appreciate the explanation. And in the last line, you meant, "if Kessler resists...:, right?
 

dcmissle

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Yes, I did. I have Berman on the brain, with fine memories. It's Kessler, or whoever argues for Brady.

Let me add a couple of points.

1. Just because Clement asked the Court to resolve these issues does not mean team Brady has to respond. At least now in writing. These issues are really not part of the judgment. Of course, if the panel asks at argument, you have to answer.

2. It is not clear to me what the panel would do about this. These issues implicate facts not pertinent to the judgment. Lots of times, a panel would be content to remand and let the district judge decide.

But then there is judicial economy. A follow up decision by Berman on these points could be appealed, which would just lengthen this further. That would point to deciding these issues in this appeal.
 

DennyDoyle'sBoil

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dcmissle said:
2. It is not clear to me what the panel would do about this. These issues implicate facts not pertinent to the judgment. Lots of times, a panel would be content to remand and let the district judge decide.
 
 
It would have been cool if Berman had said, instead of just not reaching them, something like, "I do not reach evident partiality because I don't need to and also because it would turn on facts I would need to take evidence."  That would have set this up differently.  But, crap, you can't have everything!
 

kartvelo

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Has anyone seen any reports yet regarding the results of the diligent measurements being made of psi this season? I haven't, but I've been pretty busy and might have missed them.
 

Marceline

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What's the incentive for the NFL to release even more evidence that Goodell screwed up? You really expect any of those numbers to be released?
 

kartvelo

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What's the incentive for the NFL to release even more evidence that Goodell screwed up? You really expect any of those numbers to be released?
Hell, no,... I was just trying to be somewhat charitable by asking instead of assuming... my cynicism was not sufficiently signaled by my subtle dig at the NFL through my use of the word "diligent."
 

loshjott

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edmunddantes

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Quite a contrast reading the way the NFL handled the Hardy appeal vs the Brady appeal.

NFL lawyers were "real" bulldogs in the Hardy case.

Link
 
Saw this originally on Barstool but it came from the Shank article - link below.

https://www.bostonglobe.com/sports/2015/11/12/larry-bird-still-shoots-from-hip/sxpngr3KxeiCGQCf0zB6ZJ/story.html

Memo to Boston fans: Larry Bird still loves you and he loves your teams. Even from his home state of Indiana, the Heartland of Deflategate Hate.

“I never root against the Boston teams,’’ Bird said in a phone interview while his Indiana Pacers prepared to face the Celtics at TD Garden Wednesday night. “There’s no sports town like Boston. I don’t care where you go.

“They talk about Chicago and Philadelphia. No. They don’t ever compare to Boston. I mean, there’s ladies in their 90s and they can name every player on the Red Sox and Patriots team. You just don’t have it anywhere like that.

“It’s unbelievable out there, and my gratitude to the fans out there is that I’d never root against them because I know how important sports are to them.”

Larry Legend didn’t take it too seriously when he first heard the deflated footballs charge after the Patriots waxed the Indianapolis Colts in the AFC Championship game last January.

“I thought it was a bunch of lying, if you want to know the truth,” said Bird. “That’s something [Bob] Kravitz [Indianapolis sports columnist] came up with, and I never believed any of it.

“It doesn’t really matter. It was written about a lot around the country, but here in Indianapolis, most people knew. We knew the Patriots was going to beat them anyway. I thought it was pretty chintzy. People finally realized they would have beat us anyway. I just laughed about it."


Kravitz' fault? Good enough for Larry Legend...good enough for me.


 

E5 Yaz

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Hey kids, look at the cool ways players alter their uniforms to give them an edge:

Now,uniform tech in the NFL gets better every year, so rigging jerseys or pads isn't as essential as it used to be. But it does still happen in today's NFL.

Here's a quick guide to how players skirt the rules -- and a reminder that they will do just about anything if they think it gives them an edge on Sundays. Got more?


http://espn.go.com/nfl/story/_/id/14097898/ten-ways-nfl-players-rig-their-uniforms

But, don't call it "cheating" ... it's just skirting the rules!
 

snowmanny

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LOL he'll show Larry! Their relationship has soured! We'll see what happens next!

He is such a fucking useless footnote.
 

Marciano490

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That might be his worst article yet. Larry is an Indiana legend living in Indiana, why would he give a shit what people hear think or need to pad his legacy here. Plus, who starts a column talking about how they don't wanna write a column because boo hoo their neck hurts.
 

TheoShmeo

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Kravitz's argument is that all he did was report that an investigation was underway. But didn't he also come out with some criticism of Belichick and sarcastic remarks about the Pats pretty soon thereafter?

I could be misremembering and I am not sure how to search for this without spending more time than I have for the task.

In any event, my recollection is that Kravitz was more than just a dutiful reporter.

And either way, I enjoyed Larry dumping on one of the symbols of resulting shit show, whether fair or not. Too bad he didn't single out Doyel, too.
 

Marciano490

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Did we know Kravitz was having neck surgery, by the way? Shouldn't that be part of the karma train?
 

dcmissle

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Kravitz's argument is that all he did was report that an investigation was underway. But didn't he also come out with some criticism of Belichick and sarcastic remarks about the Pats pretty soon thereafter?

I could be misremembering and I am not sure how to search for this without spending more time than I have for the task.

In any event, my recollection is that Kravitz was more than just a dutiful reporter.

And either way, I enjoyed Larry dumping on one of the symbols of resulting shit show, whether fair or not. Too bad he didn't single out Doyel, too.
He tweeted that if Mort was right, heads should roll and specifically Bill Belichick's.
 

geoduck no quahog

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The weather's starting to cooperate. Seeing as how the NFL will never release the data they're gathering on ball inflation (they can't, can they) I wish some of us had access to 15 footballs and a video camera.

Pump 11 to 12.5 and to 4 to 13.0, then acclimate those footballs to the right temperature (with or without rain, with or without being bagged - I doubt that matters much). Bring them back indoors and start remeasuring them (11, followed by 4). Video the whole thing to kill cheating charges. Rinse & Repeat.

If I had an 8th grade kid I'd make him do it as a science project.
 

edmunddantes

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The weather's starting to cooperate. Seeing as how the NFL will never release the data they're gathering on ball inflation (they can't, can they) I wish some of us had access to 15 footballs and a video camera.

Pump 11 to 12.5 and to 4 to 13.0, then acclimate those footballs to the right temperature (with or without rain, with or without being bagged - I doubt that matters much). Bring them back indoors and start remeasuring them (11, followed by 4). Video the whole thing to kill cheating charges. Rinse & Repeat.

If I had an 8th grade kid I'd make him do it as a science project.
Actually kind of feel bad for science fairs because across New England there are probably going to be at least a quarter of the projects at any fair with that type of set up.
 

Hildy

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Kravitz's argument is that all he did was report that an investigation was underway. But didn't he also come out with some criticism of Belichick and sarcastic remarks about the Pats pretty soon thereafter?

I could be misremembering and I am not sure how to search for this without spending more time than I have for the task.

In any event, my recollection is that Kravitz was more than just a dutiful reporter.
I am avoiding a very tedious task. More tedious than scrolling through the first 20 pages of this thread, which should tell you something. So:

Kravitz kicked it off early Jan 19 with a bunch of tweets breaking the story.
Things were dying down until
Mortenson tweet on 1/20 (post #1074)
The Kravitz tweet about firing Belichick comes shortly thereafter (#1239)

And the first reference to PV = nRT comes at #583 from Frisbetarian.
 

CantKeepmedown

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Kravitz also had this gem on Jan 20

"Pats fans: give up the fantasy. Your brilliant head coach is also a cheat. 11 of 12 balls deflated. Must be the ball boys fault right?"

 

BigSoxFan

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I wonder if Kravitz is familiar with the other meaning of "crossing swords". Not the phrase I would have chosen there.
 

PayrodsFirstClutchHit

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Kravitz suffering from chronic neck pain is proof of a vengeful god and that he is smiting all of Brady's enemies.

How long before we hear that CHB's dick has fallen off from leprosy?
 

BigSoxFan

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Best quote of the article:

"And the one thing you don't do with a journalist, especially one who's right, is question his or her integrity."

That one line basically sums up journalism in 2015. We get to call coaches and players out and question their integrity but don't dare come back at us!
 

joe dokes

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Best quote of the article:

"And the one thing you don't do with a journalist, especially one who's right, is question his or her integrity."

That one line basically sums up journalism in 2015. We get to call coaches and players out and question their integrity but don't dare come back at us!
Fuck the whole concept of "integrity" in this context. It's an attempt at a high-falutin' sounding distraction.

Anytime a reporter gets his skill or work as a reporter questioned, the reporter claims its an attack on his "integrity." Its as though, in their minds, the only allowable criticisms are for spelling and grammar. Any other target -- laziness, agendas, maintaining access uber alles, only having JP Ricciardi on the Rolodex -- aren't criticisms of their journalistic skills, they say, but are instead something much more grave.